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ESA provisions

The Endangered Species Act includes key sections that specifically protect at-risk species and habitat.

Section overview of the Endangered Species Act

Listing provision

Section 4 of the Endangered Species Act is known as the listing provision. The process of listing a species as threatened or endangered is supposed to be accompanied by “critical habitat designation.” Today designation accompanies less than 10% of all listing decisions.

Scientific consultation

Section 7 of the ESA imposes on all federal agencies a duty to avoid acting in ways that might “jeopardize” the existence of any listed species. This is implemented through a requirement to “consult” with the Fish and Wildlife Service or the National Marine Fisheries Service to determine whether listed species are present and how to avoid the jeopardy. If listed species are present, a formal “biological opinion” must be prepared that assesses the likely jeopardy, including any “reasonable and prudent alternatives.”

Controlling the kill

Section 9 of the ESA has been called the most powerful piece of wildlife legislation in the world, making it illegal for “any person” to import, take, possess, sell, deliver, or carry a listed species—or attempt to do any of these things. “Take” is broadly defined to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” a listed species.

Statute enforcement

Section 11 of the ESA deals with enforcement of the statute. It provides both civil and criminal penalties for knowing violations of the law, and authorizes citizen suits against any person alleged to be in violation of the ESA. This includes the Secretaries of Interior or Commerce, if they, for example, fail to list a species when evidence allegedly shows that it is clearly in danger.

Habitat conservation plan

The other vitally important provision of the ESA is Section 10, added by Congress when it amended the law in 1982, allowing private parties to “take” listed species provided that the take is “incidental” to otherwise lawful activity and is accompanied by an approved “habitat conservation plan.”